Reports, should be read with care. It depends mainly upon the application of the principle that it is not legally possible for the owner of chattel property to attach to it any condition or covenant "running with the goods" analogous to covenants running with the land, and so interfere in any way with the jus disponendi, which is one of the inherent rights incident to ownership. The principle that restraint upon the transfer of stock in a public company incorporated under the Ontario Act is foreign to the scheme of the Act had been recognized in the Ontario Courts for many years, but this case deals for the first time with the effect of a shareholders' agreement.

G. F. H.

*

FIRST MORTGAGEE AND RECEIVER FOR SECOND MORTGAGE BONDHOLDERS-POSSESSION BY LATTER-EFFECT ON FORMER'S RIGHTS. -The extent to which protection will be afforded by the Court to a receiver for second mortgage bondholders has recently been defined in the case of Watson v. The Imperial Steel Corporation, Limited,1 The first mortgagee had admittedly gone into possession of the mortgaged premises for default under its mortgage before the receiver took possession, but it was contended that the receiver having actually taken possession subject to the prior possession of the first mortgagee, the first mortgagee could take no further proceeding to enforce its security without obtaining the leave of the Court.

Subsequently, the first mortgagee proceeded to advertise the property for sale under the powers, contained in its mortgage, and the receiver applied to the Court for advice and directions pursuant to the provisions of the order appointing it receiver. Mr. Justice Rose, before whom the application came, directed that the receiver should notify the first mortgagee to appear before a Judge of the Court to show cause why the sale of the property in respect of which the receiver had been appointed should not be stayed until the leave of the Court had been obtained. Accordingly when the first mortgagee announced its intention of going on with the sale, the receiver applied to the Court and Mr. Justice Wright held that the first mortgagee must get the leave of the Court before proceeding.

In so holding Mr. Justice Wright relied upon In re Metropolitan Amalgamated Estates. In that case, however, the receiver for the second mortgagee had actually taken possession of the mortgaged premises before the first mortgagee, and proceedings by the first mortgagee would have had the effect of ousting the receiver. It was there

fore held that leave of the Court must be first obtained. Moreover in that case the order appointing the receiver for the second mortgagee did not expressly make his appointment subject to the rights of the first mortgagee, and the Court suggested that if the receiver's appointment had been made subject to the rights of the first mortgagee its decision might have been otherwise.

In the Watson case the Ontario Appellate Division distinguished the Metropolitan Amalgamated case on the grounds indicated in the preceding paragraph and reversed the decision of Mr. Justice Wright. The Court held that the first mortgagee having taken possession and retained it could give possession to a purchaser and could make a valid sale without obtaining the leave of the Court. The Court also held that the order appointing the receiver in this case in effect made the appointment subject to the rights of the first mortgagee, and on this ground also held that no leave was necessary.

The disposition made of the costs of the proceedings is calculated to make receivers exceedingly cautious. Although the receiver had applied for the advice and direction of the Court and had merely acted pursuant to that advice, the Court directed it to pay the costs of the first mortgagee and to recoup itself out of the estate (if any) of the mortgagor which might come into its hands.

E. F. R.

*

"The

WILL-CHARITABLE BEQUEST-BENEFICIARY.—[Rule.] beneficiary must be designated either by name or by description with such certainty that he can be readily identified and distinguished from every other person; otherwise the bequest is void for uncertainty. He must be clearly ascertained and distinguished."

Applying this rule, Martin, A.C.J. in the case of Smith v. Hart,' held that a bequest in the following terms was void: "To the Laboring Brethren and Poor Saints, a religious and charitable society, represented and acting by William Frederick Hart, Printer, and James Aird, Banker, both of the City and District of Montreal, thirty-one two-hundredths [of the Testator's estate]."

One of the testator's heirs at law attacked the bequest, alleging that it was void for want of certainty.

The learned Chief Justice declared that it appeared from the evidence that the Laboring Brethren and Poor Saints, otherwise

To be reported in the current volume of the Quebec Official Reports, Superior Court.

known as the Plymouth Brethren, had no corporate existence, but that there are several unincorporated religious associations or sects of persons known by that name. . Congregations exist throughout England, Canada, the United States and elsewhere. They have no officers or other representatives and no one more than another is authorized to speak in their name.

The judgment proceeds to say that "Messrs. Hart and Aird have no status and do not represent the Laboring Brethren and Poor Saints, and the bequest is not in terms to these gentlemen as trustees, and the case of Abbott v. Fraser2 (the Fraser Institute case) has no application.

It appears that in France, if a bequest is made to the poor, the Mayor of the commune can legally claim the bequest. No such machinery is in force in the Province of Quebec.*

Pothier lays down the rule that a testamentary bequest is null for vagueness when it is not possible absolutely to distinguish the person for whose benefit the testator intended to make it."

In the case of Cameron v. Church of Christ Scientist the bequest of the testator was in the following terms:

"Fifty thousand will be held as a fund towards helping to supply such institutions as may in the near future be demonstrated to shew that God's people are willing to help others to see the light that is so real, near and universal for all who will receive. These institutions may take the place of what at present are called Hospitals, Poor Houses, Gaols and Penitentiaries or any place that is maintained for the uplifting of humanity."

The Supreme Court (confirming the judgment of Sutherland, J.) held that the legacy was void because "The language in which the legacy is couched is so vague, visionary, chimerical and impracticable and the objects intended to be benefited and the time when the benefit is to accrue are so uncertain that no reasonable or intelligent construction or effect can be given to the clause."

An apparent exception to the rule requiring definite identification of the thing given and the person to whom it is given will be found in the case of McGibbon v. Abbott. In that case a bequest was made to the testator's grandchildren in such proportion as the testator's son should decide by will.

2 L.R. 6 P.C. p. 96.

4

3 Planiol, Vol. 3, 9th ed., p. 785. No. 2998.

See remarks of Mr. Justice Fournier in the case of Ross v. Ross, 25 S. C R. 307.

5 Donation Testamentaire, No. 73. See also Demolombe, Vol. 18, Nos. 608

and 618.

57 S. C. R. 298.

7 L. R. 10 A. C. 653.

The bequest was held to be valid, because in this case it was clear that the intention of the testator was to make a bequest to his grandchildren, subject to the discretion of their father as to the apportionment of the shares which each should receive. The bequest was to a well-defined and limited class, every member of which was primâ facie entitled to a share, subject to the possibility of exclusion at the discretion of a person named in the will.

In the case of Ross v. Ross, the majority of the Supreme Court held that a bequest of a part of the estate to be distributed " amongst poor relatives as the executor may judge best" was void; but the bequest of a part of the estate to the testator's brother "who will use one-half of them for Protestant public charities in Quebec and Carluke, say the Protestant Hospital Home, French-Canadian Mission as he may judge best" was held to be valid, on the ground that the charitable institutions intended to be benefited were sufficiently designated under the name of "Protestant public charities in Quebec and Carluke" to enable the executors to determine what were the public charities intended by the testator.

...

These two cases are exceptions, but where no such precision occurs in the designation of the beneficiaries or class of beneficiaries, the Courts invariably decide that the bequest is void for vagueness.

For example, in the case of Blair v. Duncan," the testatrix by codicil in her own handwriting directed her trustee that in certain events, which happened, one-half of the residue of her estate should be applied for such charitable or public purposes as her trustee thought proper. The House of Lords, confirming the decision of the Second Division of the Court of Sessions, held that the bequest was void for uncertainty.

Again, in Grimond v. Grimond,10 the testator directed his trustees. to divide a portion of the residue of his estate among such "charitable or religious institutions and societies as they may select." The House of Lords, reversing the decision of the Second Division of the Court. of Sessions, held that the bequest was void for uncertainty.

An interesting application of the rule illustrated in the foregoing cases will be found in the case of Atkinson v. Cinq-Mars,11 interesting in that it deals with the effect of Art. 869 C.C. In this case the will directed that at the termination of a usufruct, the property of the testator should be distributed and used in works of charity by the testamentary executor named in the will.

The trial Judge maintained the validity of the clause, basing his judgment on Art. 869 C.C., which says that a testator may name legatees, who shall be merely fiduciary, for charitable or other lawful purposes within the limits permitted by law, and that he may also deliver over his property for the same objects to his testamentary executors, or effect such purposes by means of charges imposed upon his heirs or legatees.

In the Court of Review, Mr. Justice Greenshields, expressing the opinion of the whole Court, made the following observations:

"The learned trial Judge interpreted the above Article to mean that a testator could appoint a testamentary executor with instructions to give or hand over or divide and distribute among charities generally part of the testator's estate, without any direction or indication what such charities should be, leaving it entirely to the discretion or choice, even whim, of his testamentary executor.

"We cannot so interpret the Article or so interpret the law. We are of opinion that while Article 869 C.C. gives the right to a person to freely dispose of his property by will, and that to charities or charitable institutions, if the will does not indicate clearly the charitable institutions or the class of charitable institutions, such a will is so tainted with uncertainty and vagueness as to be impossible of execution, and the clause must be considered as non ecrit.

"In the clause under consideration, there is no indication of any class of charitable institutions; there is no limitation; and it is impossible from the will itself to ascertain to what charities or what class of charities the testatrix wished her property to go. At the whim or caprice even of a testamentary executor, the property might be distributed to charities thousands of miles away from the home of the testatrix, or if the testamentary executor was greatly impressed with the idea that charity begins at home and ends there,' no distribution might take place."

6

J. ARTHUR MATHEWSON.